Citation Nr: 0013447
Decision Date: 05/22/00 Archive Date: 05/30/00
DOCKET NO. 99-00 714 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to dependent's educational assistance
benefits under the provisions of Title 38, Chapter 35, of the
United States Code ("Chapter 35 benefits").
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Crowley, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1943 to April
1946. The appellant is his surviving spouse.
The above matters come before the Board of Veterans' Appeals
(Board) on appeal from an October 1997 decision of the
Department of Veterans Affairs (VA) St. Petersburg, Florida,
Regional Office (RO).
FINDINGS OF FACT
1. According to his certificate of death, the veteran died
in November 1993, at age 70, of metastatic lung carcinoma as
the immediate cause of death.
2. Also according to the certificate of death, the manner of
the veteran's death was "natural," he died while
hospitalized, and an autopsy of the veteran's body was not
performed.
3. At the time of his death in November 1993, the veteran
was not service-connected for any disability.
4. It has not been shown that the metastatic lung carcinoma
that caused the veteran's natural death more than 45 years
after his separation from active military service was related
in any way to service.
5. The veteran was honorably discharged in April 1945 but
did not have a permanent and total service-connected
disability at the moment of his death, nor has it been shown
that he died as a result of a service-connected disability.
CONCLUSIONS OF LAW
1. The appellant has submitted a claim of entitlement to
service connection for the cause of the veteran's death that
is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a)
(West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.312 (1999).
2. The appellant has submitted a claim of entitlement to
Chapter 35 benefits that lacks legal merit or entitlement
under the law and is, therefore, not plausible or capable of
substantiation. 38 U.S.C.A. §§ 3500 through 3566 and 5107(a)
(West 1991); 38 C.F.R. §§ 3.807 and 21.3001 through 21.3344
(1999); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The threshold question that must be resolved at the outset of
the analysis of any issue is whether each one of the appealed
claims is well grounded; that is, whether it is plausible,
meritorious on its own, or otherwise capable of
substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997),
cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998),
the United States Court of Appeals for the Federal Circuit
(Federal Circuit) held that, under 38 U.S.C.A. § 5107(a), the
Department of Veterans Affairs (VA) has a duty to assist only
those claimants who have established well grounded (i.e.,
plausible) claims. More recently, the United States Court of
Appeals for Veterans Claims (Court) issued a decision holding
that VA cannot assist a claimant in developing a claim that
is not well grounded. Morton v. West, 12 Vet. App. 477 (July
14, 1999), req. for en banc consideration by a judge denied,
No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam).
An appellant has, by statute, the duty to submit evidence
that a claim is well-grounded, which means that the evidence
must "justify a belief by a fair and impartial individual"
that the claim is plausible. 38 U.S.C.A. § 5107(a) (West
1991). When such type of evidence is not submitted, the
initial burden placed on the appellant is not met. Tirpak v.
Derwinski, 2 Vet. App. 609 (1992).
Establishing a well-grounded claim for service connection for
a particular disability requires more than an allegation that
the particular disability had its onset in service. It
requires evidence relevant to the requirements for service
connection and of sufficient weight to make the claim
plausible and capable of substantiation. See Tirpak v.
Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). The kind of evidence needed to
make a claim well grounded depends upon the types of issues
presented by a claim. Grottveit v. Brown, 5 Vet.App. 91,
92-93 (1993). For some factual issues, competent lay
evidence may be sufficient. However, where the claim
involves issues of medical fact, such as medical causation or
medical diagnoses, competent medical evidence is required.
Id. at 93. Evidentiary assertions by the veteran must be
accepted as true for the purposes of determining whether a
claim is well grounded, except where the evidentiary
assertion is inherently incredible or is beyond the
competence of the person making the assertion. See King v.
Brown, 5 Vet.App. 19 (1993).
The three elements of a "well grounded" claim for direct
service connection normally are: (1) evidence of a current
disability as provided by a medical diagnosis; (2) evidence
of incurrence or aggravation of a disease or injury in
service as provided by either lay or medical evidence, as the
situation dictates; and, (3) a nexus, or link, between the
in-service disease or injury and the current disability as
provided by competent medical evidence. See Caluza v. Brown,
7 Vet.App. 498 (1995); see also 38 U.S.C.A. § 1110 (West 1991
& Supp. 1998); 38 C.F.R. § 3.303 (1998); Layno v. Brown,
6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App.
492, 494-95 (1992).
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. The issue involved will be
determined by the exercise of sound judgment, without
recourse to speculation, after a careful analysis has been
made of all the facts and circumstances surrounding the death
of the veteran, including, particularly, autopsy reports.
38 C.F.R. § 3.312(a) (1999).
The service-connected disability will be considered as the
principal (primary) cause of death when such disability,
singly or with some other condition, was the immediate or
underlying cause of death or was etiologically related
thereto. 38 C.F.R. § 3.312(b) (1999).
In determining whether the service-connected disability
contributed to death, it must be shown that it contributed
substantially or materially; that it combined to cause death;
that it aided or lent assistance to the production of death.
It is not sufficient to show that it casually shared in
producing death, but rather it must be shown that there was a
causal connection. 38 C.F.R. § 3.312(c)(1) (1999).
The Court has said that the first of the requirements set
forth in Caluza for the submission of a well-grounded claim,
namely, evidence of a current or present disability, is
always met in claims for service connection for the cause of
a veteran's death, the current disability being the condition
that caused the veteran to die. However, the last two
requirements must be supported by the evidence of record.
Ramey v. Brown, 9 Vet. App. 40, 46 (1996). If the appellant
fails to present competent medical evidence of a causal
relationship between the veteran's death and inservice
incurrences or events, his or her claim for direct service
connection for the veteran's death fails as not well
grounded. Id.
The Court has also explained that the use of the term "well-
grounded" is confined to an evidentiary context in the field
of veterans' benefits and that, accordingly, where the law
and not the evidence is dispositive of a case, a claim for VA
benefits should be denied or the appeal to the Board
terminated because of the absence of legal merit or the lack
of entitlement under the law. In such cases, the application
of the "not well-grounded" phrase would be legally
imprecise, if not incorrect. See, Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994).
I. Entitlement to service connection for the cause of the
veteran's death.
The appellant contends that the cause of the veteran's death
should be service-connected because she believes that the
veteran manifested lung cancer as a result of his service,
specifically, that he was exposed to asbestos in service.
According to his certificate of death, the veteran died while
hospitalized on November 29, 1993, at age 70, of metastatic
lung cancer as the immediate cause of death. The manner of
death was "natural" and an autopsy of his body was not
performed.
At the moment of his death, the veteran was not service-
connected for any disability.
The veteran's service medical records (SMRs) show that
photofluorgraphic examinations of the chest were reportedly
negative in May 1945 and September 1945. His separation
examination, dated April 1946, notes that a photofluorgraphic
examination reportedly revealed an old pleurisy on the left,
but that this finding was not considered disqualifying.
Review of the SMRs reveals no evidence of the manifestation
of lung cancer at any time during service.
The appellant contends that the veteran was exposed to
asbestos during his active service, and that this exposure
caused his lung cancer. Specifically, she has provided
copies of what appear to be letters from the veteran, where
he describes his duties during his Navy service, including
repairing an engine and distilling water.
The post-service medical evidence in the record consists of
medical records detailing the veteran's diagnosis and
treatment for lung cancer. We note that a private medical
record dated October 1991 reveals that the veteran was
diagnosed, in pertinent part, with chronic obstructive
pulmonary disease (COPD), and oat cell carcinoma of the lung.
An October 1991 pathology report lists a diagnostic
impression of small cell (oat cell) undifferentiated
carcinoma of [the] lung. Subsequent treatment records show
that the veteran underwent a course of chemotherapy and
radiation therapy. A June 1992 record shows that an x-ray
report reportedly revealed an increase in infiltrate. A
hospital admission record dated October 1993 shows that the
veteran was diagnosed with lung carcinoma with metastasis,
superior vena caval syndrome. The expiration summary dated
November 1993 reveals that the veteran was diagnosed with
metastatic lung carcinoma.
In addition to these treatment records, a review of the
veteran's records was conducted in September 1997, with a
specific opinion provided with respect to the etiology of the
veteran's lung cancer. This VA report notes that the
veteran's claims folder was reviewed, including his SMRs.
The reviewer noted that "Throughout the chart there is no
evidence of any chest x-rays which show typical lung changes
usually associated with asbestosis." The reviewer also
noted that a biopsy of the right upper lung lobe reportedly
revealed evidence of small cell or oat cell undifferentiated
carcinoma of the lung. The reviewer determined that "It is
normally found that asbestosis causes...mesothelioma or
squamous cell type of carcinoma and is not usually reflected
by a diagnosis of oat cell carcinoma. The reviewer noted
that "We were asked to provide an opinion as the etiology of
the veteran's lung cancer. As [the] biopsy report reflected
the veteran [had] oat cell carcinoma of the lung[,]...it is
unlikely that it was related to asbestosis exposure."
Finally, the post service medical evidence also includes a
letter, dated September 1998, from the veteran's private
physician, which states:
[The appellant] requested I write this
letter regarding her husband's death from
lung cancer. It is my understanding that
individuals exposed to asbestos have a
higher incidence of lung cancer[,]
especially in cigarette smokers[,] which
represents a seven fold increase. Only
about seven percent of these lung
cancer[s] are caused by pleural
mesothelioma. The rest are other types
of lung cancer.
The Board finds that the Caluza criterion of a present
disability has been met in the present case, as this
criterion is met in all cases of entitlement to service
connection for the cause of a veteran's death, as explained
earlier in this decision. However, the remaining criteria
for the submission of a well grounded claim for service
connection have not been met, as the record reveals no
evidence of the manifestation of lung cancer or asbestosis at
any time during service and, more importantly, there is no
competent evidence in the record demonstrating that there is
the claimed nexus, or causal relationship, between the cause
of the veteran's death in November 1993, more than 45 years
after service, and service.
The September 1998 letter is not pertinent to the veteran's
case, as it discusses the incidence of lung cancer in the
general population. It is therefore speculative, and not
sufficient to present a well grounded claim. Obert v. Brown,
5 Vet. App. 30, 33 (1993).
The only positive evidence in the record regarding a possible
nexus consists of the appellant's own unsubstantiated
statements in that regard. While the Board does not doubt
the good faith of these statements, it must be noted that the
Court has held that statements of medical causation submitted
by nonmedical personnel (such as the appellant, who has not
demonstrated any medical expertise) are considered lay
evidence and that, as such, they are insufficient well ground
a claim for service connection. See, Espiritu v. Derwinski,
2 Vet. App. 492 (1992).
In view of the above, the Board concludes that the appellant
has failed to meet her initial duty to submit a claim for
service connection for the cause of the veteran's death that
is plausible, or well grounded, as it has not been
objectively shown that the cause of the veteran's death was
causally related to service. The appellant's failure to do
so translates into a lack of a duty to further assist her and
also means that her claim must be denied.
Finally, the Board notes that the RO's failure to find this
claim for service connection not well-grounded constitutes
harmless error. Edenfield v. Brown, 8 Vet. App. 384 (1995).
The Board also notes that the appellant has not reported that
any competent evidence exists that, if obtained, would
establish a well-grounded claim for service connection for
the cause of the veteran's death. Under these circumstances,
VA has no further duty to assist her, as per the provisions
of 38 U.S.C.A. § 5103(a) (West 1991), in the development of
said claim. See, Epps v. Brown, 9 Vet. App. 341 (1996);
Robinette v. Brown, 8 Vet. App. 69 (1995).
II. Entitlement to Chapter 35 benefits.
The evaluation of a claim for Chapter 35 benefits requires an
initial determination of the applicant's eligibility for such
benefits. In particular, the pertinent regulation provides
two basic criteria to determine whether a child, spouse or
surviving spouse of a veteran has "basic eligibility."
First, the veteran must have been discharged from service
under conditions other than dishonorable, or must have died
in service. 38 C.F.R. § 3.807(a)(1) (1999). The service
must have been active military, naval or air service on or
after April 21, 1898. 38 C.F.R. § 3.807(b) (1999). Second,
in cases where the veteran has already died, the veteran must
have had a permanent total service-connected disability at
the date of his death or must have died as a result of a
service-connected disability. 38 C.F.R. § 3.807(a)(3) and
(4) (1999); see, also, 38 U.S.C.A. § 3501(a)(1)(B) and (D)
(West 1991); and 38 C.F.R. § 21.3021(a)(2) (1999).
The first criterion is met in the present case because it has
been shown that the veteran served between 1943 and 1946 and
that he was honorably discharged from active military service
in April 1946. However, the second criterion has not been
met because, at the date of his death, the veteran did not
have a permanent total service-connected disability, nor did
he die as a result of a service-connected disability, as
discussed earlier in this decision.
The appellant clearly does not fully meet the basic
eligibility criteria of 38 C.F.R. § 3.807(a) (1999).
Therefore, the claim of entitlement to Chapter 35 benefits is
not plausible, as it lacks legal merit or entitlement under
the law. As such, it has failed and must be denied.
Finally, it must be noted that the Board has been unable to
locate evidence in the record demonstrating any probability
that the appellant will be able to obtain the additional
information that would be needed to complete her application
for Chapter 35 benefits. Therefore, VA's obligation to
further advise her, as required by § 5103(a), has not arisen.
ORDER
The claim of entitlement to service connection for the cause
of the veteran's death is denied.
The claim of entitlement to Chapter 35 benefits is denied.
M. W. GREENSTREET
Member, Board of Veterans' Appeals